Magnuson v R

Magnuson v R - [2013] NSWCCA 50 - NSWCCA 2012 case summary — Zoe

Offences and objective features 5The applicant was sentenced for 12 sexual offences against his stepdaughter KB, who was born in August 1969. He was sentenced for nine sexual offences against his stepdaughter LM, who was born in September 1972. And he was sentenced for four sexual offences against his relative JM, who was born in August 1967. Because of the multiplicity of offences, it is convenient to use a table to describe the offence, the offence creating provision, the applicable maximum penalty, the date of the offence, the age of the victim at the time of the offence, and any other noteworthy aspect. At the end of each table, a short summary of the objective features of each offence is provided. Again, due to the multiplicity of offences, that summary will be brief. 6All of the data is derived from the remarks on sentence. Neither party to the appeal submitted that her Honour had made any error with regard to the material that underpins the following analysis. OFFENCES - VICTIM KB CT NO OFFENCE OFFENCE CREATING PROVISION/MAX PENALTY DATE OF OFFENCE AGE OF VICTIM OTHER ASPECTS 1 Indecent assault female under 16 years s 76 / 6yr 1 Aug 1977 - 31 Dec 1979 8 - 10 years 2 Indecent assault person under 16 years s 61E(1) / 6yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years 3 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 2 4 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 2 5 Indecent assault person under 16 years s 61E(1) / 6yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 2 6 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 2 8 Indecent assault person under 16 years s 61E(1) / 6y 1 Jan 1983 - 31 Dec 1984 13 - 15 years 9 Indecent assault person under 16 years s 61E(1)/6y 1 Jan 1983 - 31 Dec 1984 13 - 15 years 10 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 9 11 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 9 12 Indecent assault person under 16 years s 61E(1) / 6yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 9 13 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years

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7The objective features of the offences involving KB were as follows. With regard to count one, the applicant approached KB whilst she was in her bedroom and touched the outside of her vagina for more than a few minutes. This occurred in the family home of the applicant and KB. 8Counts two, three, four, five and six were committed as part of the same event at the family home in the master bedroom. In respect of count two, the applicant touched the outside of KB's vagina with his fingers whilst she was lying down on the bed. Count three was a continuation of count two: the applicant touched the inside of KB's vagina without her consent. With regard to count four, the applicant licked, without consent, KB's vagina as he was touching her with his fingers. With regard to count five the applicant rubbed his penis on the outside of KB's vagina. Count six reflected that the applicant asked KB to lick his penis and encompassed an attempt to place his penis in KB's mouth. (The applicant was acquitted on count seven.) 9The criminality of count eight occurred on a separate occasion in the same family home. The applicant touched and licked KB's vagina, and then moved her onto a bed where he rubbed his penis on the outside of her vagina for a few minutes. The applicant ejaculated on KB's stomach. 10Counts nine, ten, eleven and twelve were all committed as part of the same event, again on a separate occasion but in the same home. Count nine was founded on an act of touching the outside of KB's vagina. Count ten reflected that the applicant moved his penis to the opening of KB's vagina. Count eleven reflected an act of cunnilingus upon KB. Count twelve reflected the applicant rubbing his penis against the outside of KB's vagina. 11Count thirteen occurred on a separate occasion in the family home. The applicant inserted his penis into KB's vagina without her consent. The applicant held KB down on the bed by her shoulder. After the event, KB was able to escape and run to the bathroom. 12 OFFENCES - VICTIM LM CT NO OFFENCE OFFENCE CREATING PROVISION / MAX PENALTY DATE OF OFFENCE AGE OF VICTIM OTHER ASPECTS 1 Indecent assault female under age of 16 years s 76 / 6yr 1 Jan 1980 - 31 Dec 1980 7 - 8 years 2 Indecent assault female under age of 16 years s 76 / 6yr 1 Jan 1980 - 31 Jul 1981 7 - 8 years 3 Indecent assault person under 16 years s 61E(1) / 6yr 1 Jan 1982 - 31 Dec 1982 9 - 10 years 4 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1983 10 - 11 years 6 Indecent assault person under 16 years s 61E(1) / 6yr 1 Jan 1983 - 31 Dec 1983 10 - 11 years 7 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1983 10 - 11 years 9 Incite person under 16 years to commit act of indecency s 61E(2) / 2yr 1 Jan 1983 - 31 Dec 1983 10 - 11 years Same event as Ct 7 10 Indecent assault person under 16 years s 61E(1) / 6yr 1 Dec 1983 - 7 Feb 1984 11 years 11 Incite person under 16 years to commit act of indecency s 61E(2) / 2yr 17 Sep 1984 - 31 Dec 1984 12 years

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13The objective features of the offences involving LM are as follows. Count one reflected that the applicant entered the bedroom of LM and placed his hand under the blanket to touch the outside of LM's vagina for a few minutes. This offence occurred in the family home of the applicant and LM. 14Count two reflected that, on a separate occasion in the family home, the applicant again entered the bedroom of LM and touched her vagina with his fingers. 15Count three occurred as part of a separate incident. In the master bedroom of the family home, the applicant took LM's hand and made her touch his penis. 16Regarding count four, the applicant was in LM's bedroom at the family home, and he licked her genitals without her consent. (The applicant was acquitted on count five). 17As for count six, the applicant placed LM's hand on his penis and made her stroke it until he ejaculated. This offence also occurred in the family home. 18Counts seven and nine occurred as part of the same event. (The applicant was acquitted on count eight.) Count seven reflected the fact that the applicant told LM to "lick his penis like a lollypop" and LM reluctantly did so. During the course of count seven, the applicant pushed LM's head down on his penis and caused LM to gag. As for count nine, the applicant stroked his penis until he ejaculated, after which he told LM to taste his semen. LM again reluctantly did so. This series of offences also occurred in the family home, however it is not clear whether it was a separate occasion to count six. 19The offence in count ten occurred on a separate occasion on a boat that the applicant was minding at the time. The applicant touched LM's vagina with his hand. 20Count eleven reflected that, on an occasion when LM was home alone with the applicant, the applicant, whilst stroking his penis, asked LM if he could put his penis in LM's vagina. She refused and walked away from him. 21 OFFENCES - VICTIM JM CT NO OFFENCES OFFENCE CREATING PROVISION/MAX PENALTY DATE OF OFFENCE AGE OF VICTIM OTHER ASPECTS 1 Commit act of indecency towards female under age of 16 years s 76A / 2yr 1 Jan 1977 -30 Nov 1977 9 - 10 years 2 Indecent assault female under age of 16 years s 76 / 6yr 1 Jan 1977 -30 Nov 1977 9 - 10 years Same event as Ct 1 3 Ravish and carnally know person w/o consent s 63 / life 1 Jan 1977 -30 Nov 1977 9 - 10 years Same event as Ct 1 4 Indecent assault female under age of 16 years s 76 / 6yr 1 Jan 1977 -30 Nov 1977 9 - 10 years

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Subjective features 25Despite the three trials, by the time of sentence the applicant had expressed remorse about the crimes he had committed against his stepdaughters, though not about those against his relative. 26The applicant was born in 1946. He was aged 64 years when he stood for sentence, and had been aged from 30 to 38 years when he committed the offences. 27The applicant had not been convicted of any offences committed after the last one under consideration. Accordingly, her Honour dealt with him on the basis that he had been a person of good character for almost 27 years. 28However, it is noteworthy that, in 1971, the applicant had been dealt with for indecently assaulting a male, and for assaulting a female under the age of 16 years with an act of indecency. He was sentenced in the Penrith Court of Quarter Sessions, and received a good behaviour bond for 3 years for each offence. 29Evidence from two psychiatrists revealed some important features. The first was that the applicant gave a history of having been sexually assaulted as a child by two separate men. Although her Honour did not explicitly accept that history, she recounted it without demurrer in the remarks on sentence. One of the psychiatrists expressed the opinion that those events could have played a role in the commission of the offences by the applicant. 30The second important feature was that, during a lengthy career in the Navy, the applicant had been on military service in Vietnam and Indonesia. He had undertaken some extremely dangerous work, such as underwater explosive disposal. Over the years he had developed a serious problem with anxiety and thereafter depression. That in turn led to self-medication with alcohol. His abuse of alcohol escalated to the point of the applicant needing to consume a bottle of sherry for breakfast. To his credit, he had sought help, and had been admitted to two facilities on more than one occasion for treatment for alcohol dependence and post-traumatic stress disorder. At the time of sentencing, the applicant was being treated with antidepressants. 31The third important feature was that, despite the denial of the applicant that he had a sexual attraction to children, one of the psychiatrists diagnosed him with a "disorder of sexual arousal consistent with paedophilia". 32Her Honour noted the willingness of the applicant to seek help, both in the past and in the future, and assessed his prospects of rehabilitation as good.

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Background and submissions 41These three grounds are founded on the following portion of the remarks on sentence: "Where there is a series of offences of course, the repeated nature of the offences will make the level of criminality more serious. It was submitted by the Crown that the following factors of aggravation apply. (1) the offences were almost all committed in the family home, (2) there was an abuse of the position of trust or authority as previously noted, (3) the victims were vulnerable because of their age, and (4) the offences involved multiple victims in a series of criminal acts. Counsel for the offender says that the harm caused does not exceed that which is already presumed, and there was no planning beyond that which is inherent in cases of this kind. I accept each of those submissions." 42With regard to all of these grounds, counsel for the applicant submitted that the sentence "I accept each of those submissions" demonstrates that her Honour was accepting the submissions of both parties, and not merely the two submissions of defence counsel. Whilst accepting that there was some ambiguity about the matter, counsel for the applicant submitted that that was the better reading of the remarks on sentence. 43He submitted that such an approach demonstrated a number of errors with regard to the establishment of aggravating features in s 21A of the Crimes (Sentencing Procedure) Act 1999. 44As for ground two, founded on s 21A(2)(l) of the Crimes (Sentencing Procedure) Act, counsel for the applicant submitted that her Honour had regarded the age of the victims as an aggravating feature with regard to all offences, and not merely some of them, as the Crown Prosecutor at first instance had submitted her Honour should do. Counsel for the applicant made clear in his written submissions in this Court that it would have been open to her Honour to adopt the approach contended for by the Crown. That approach was to differentiate between offences and find the circumstance of aggravation established with regard to some, but not all, of the offences. But, he submitted, the remarks on sentence show her Honour did not adopt that course. 45As for ground three, founded on s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act, counsel for the applicant pointed to the line of authority to the effect that the circumstance of aggravation of an offence being committed in the home of a victim cannot be made out when the offender is ordinarily there, as opposed to an intruder. On the facts of this matter, he submitted, the applicant never committed any of the sexual offences as an intruder. The family home to which her Honour referred was the home of the applicant. 46As for ground ten, founded on s 21A(2)(m) of the Crimes (Sentencing Procedure) Act, counsel for the applicant submitted that each offence related to one victim. Each offence came before her Honour for separate consideration, and for the imposition of a separate sentence. Therefore it was erroneous, with regard to each offence, to find that the aggravating feature of there being multiple victims had been made out. Of course that was a feature of the sentencing exercise a whole, he submitted, but that should have been reflected in the sentencing structure and the total operative sentence, not as a matter of aggravation with regard to each individual sentence. 47In this Court, counsel for the Crown made the following responses. As for ground two, the Crown drew attention to the delineation between offences in the written submissions of the Crown at first instance, and submitted that it was consistent with authority. In any event he submitted that analysis of the sentences actually imposed suggests that her Honour had not aggravated the offences by way of the age of the victim, in the practical sense of imposing a sentence that was longer. 48As for ground three, he submitted that a sentence imposed for an offence that had not been committed in the home was identical to the sentences imposed for equivalent offences that had been committed in the home. Therefore, he submitted, even if there had been an error, one could infer that the aggravating feature had had no effect on the sentences actually imposed. In the circumstances, this Court would not intervene. 49As for ground ten, the Crown submitted that the written submissions at first instance demonstrate that the Crown was not asking her Honour to aggravate any offence on the basis that there were multiple victims. Instead, the sentencing structure as a whole should and would reflect that fact. He submitted that the written submissions at first instance of the Crown merely invited attention to a number of counts that were committed in the context of other offences against the same victim. Accordingly, to the extent that her Honour made clear that she was merely adopting the submissions of the Crown, no error was demonstrated.

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Determination 50I am prepared to adopt the reading of the final sentence in the extract from the remarks on sentence for which the counsel for the applicant contends. But even on that expansive reading, ground two must fail. That is because her Honour was indicating that her Honour accepted the submission of the Crown, and counsel for the applicant in this Court concedes that the written submissions of the Crown at first instance on this point were correct. It is true that her Honour did not deal with the submission in detail in the remarks on sentence. But there is nothing in the remarks on sentence to suggest that her Honour went beyond the submission of the Crown, which counsel for the applicant concedes was correct in its discriminating approach. 51It follows that I would not uphold ground two. 52However, grounds three and ten are in a different category. 53With regard to ground three, the applicant was not an intruder in the premises in which the offences took place. To the contrary, he lived there. 54I accept the submission of counsel for the applicant that, in those circumstances, the fact that almost all of the offences were committed in the family home could not be a matter of aggravation: see Ingham v R [2011] NSWCCA 88 at [112] and NLR v R [2011] NSWCCA 246 at [22]. 55Accordingly, ground three is made out. 56Finally, as for ground ten, perhaps contrary to the submission of the Crown at first instance, her Honour aggravated the offences on the basis of the multiplicity of the victims. That, I respectfully consider, was an error. Her Honour also, it seems in conformity with the submission of the Crown, aggravated the offences on the basis that they were part of a series of criminal acts. But that circumstance of aggravation is directed towards offences that themselves encompass a series of criminal acts. It is not directed towards offences that take their place as one of a series of criminal acts. The distinction is important, and was drawn in R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 at [28] - [29]. It follows that part of the approach of her Honour was also an error. 57In short, with regard to the aggravating features of there being a multiplicity of victims and there having been a series of criminal acts, I consider that her Honour has erroneously taken them into account with regard to individual offences that were, in truth, committed against one victim only, and encapsulated one criminal act only. 58It follows that I would uphold ground ten. 59In summary, I would uphold two grounds of appeal founded on the proposition that her Honour erroneously took into account aggravating features. Whether those established errors will lead to reduction in any of the sentences imposed upon the applicant is a separate question, due to the operation of s 6(3) of the Criminal Appeal Act 1912. I shall return to that question later in my judgment.

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Background and submissions 60The first five grounds above underpinned the last. At the hearing of the appeal, counsel for the applicant submitted that his central complaint was that the sentences, both individually and in their total effect, do not adequately reflect the sentencing practices that existed at the time of the commission of the offences. 61It is convenient to discuss ground eight first. The ground asserts that undue weight has been given to a relevant factor. To my mind that is, in truth, a particular of ground eleven: see Hanania v R [2012] NSWCCA 220 at [33]. It follows that I will consider it when I come to consider ground eleven. 62But it is useful to say at this stage that, whilst it is true that the applicant had not offended again since the last of the offences, it is also true that, having sexually assaulted his three victims over many years, he escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that time. Furthermore, even if the "reform to the offender" had been truly exemplary, general deterrence would still have had a significant role to play in sentencing an offender who was convicted of 25 sexual offences after three trials, those offences having been committed against three young girls over an extended period. 63I would not uphold ground eight as a separate ground 64Grounds six, seven and eleven focus upon the fact that her Honour was sentencing in 2011 for offences committed many years before. 65The submission of counsel for the applicant can be encapsulated in a number of propositions. 66First, it was incumbent upon her Honour when sentencing the applicant to take into account the pattern of sentencing that existed at the time of the commission of the offences. 67Secondly, material before her Honour and this Court in the form of sentencing statistics and other material was not able to demonstrate the relevant sentencing pattern with perfect clarity. But it was sufficient to establish that sentences were markedly more lenient at the time of the commission of the offences in question. 68Thirdly, that is especially the case with regard to the offence of indecent assault, which forms a substantial proportion of the offences of which the applicant was convicted. Furthermore, the proposition holds true even when one takes into account that, prior to 1981, many offences that would nowadays be dealt with as founded upon sexual intercourse were dealt with as indecent assaults. 69Fourthly, not only were sentences in those days more lenient, but also the general rule was that non-parole periods were between one-third and one-half of their head sentences. Her Honour should have adopted a sentencing structure that reflected that proposition, not only with regard to individual sentences, but also with regard to the overarching total head sentence and total non-parole period. 70Fifthly, the head sentence of imprisonment for 12 years with a non-parole period of imprisonment for 6 years imposed for the offence of rape committed against the victim JM is markedly inconsistent with sentencing practices in 1977. 71Sixthly and finally, error has been established, and this Court should intervene to correct it by reducing the total head sentenced to some degree and by reducing the total non-parole period markedly. 72In response, the Crown made the following submissions. 73First, he accepted that it was incumbent upon her Honour to take into account sentencing practices at the time of the commission of the offences. However, he submitted that that aspect of the process had been specifically drawn to the attention of her Honour, and reference was made to it in the remarks on sentence. In short, he submitted that this was not a case where a relevant consideration on sentence had been completely overlooked; rather, it was a case in which a relevant factor had indeed been considered, and the applicant was complaining merely about the discretionary decision as to how to reflect it in the sentence. 74Secondly, he accepted that sentences for sexual offences have increased since the commission of the last offence of the applicant in 1984. He referred specifically to the introduction of "truth in sentencing" (by which I understand him to mean the abolition of remissions many years ago), and the commencement of the regime of standard non-parole periods. 75In oral argument, counsel for the Crown stated that he did not cavil with the proposition that sentences for sexual offences have increased markedly in the past 25 years. 76Nevertheless, he submitted thirdly that her Honour had explicitly referred to the matter in the remarks on sentence, and taken it into account. In the circumstances, this Court would be slow to intervene with regard to the discretionary question as to what should be the ultimate sentence, in light of the application by her Honour of the relevant principle. 77Fourthly, he submitted that, in truth, the statistics and other materials provided to her Honour and before this Court do not clearly establish that sentences imposed at the time of the commission of the offences were markedly below those imposed by her Honour. With regard to the particular challenge against the sentences imposed by her Honour for offences of indecent assault, he submitted that that proposition of counsel for the applicant could not be sustained. 78Fifthly, he rejected the proposition that one can be satisfied that the sentence imposed for the rape of JM has been demonstrated to be inconsistent with sentencing patterns prevailing at the time of that offence. He reminded the Court that the offence was committed against a girl of 9 or 10 years of age who was in the care of the applicant, and that the offence inherently featured penile vaginal penetration. He also noted the fact that the maximum penalty for the offence of rape at the time was imprisonment for life, and that the offence had carried the death penalty until 1955. He submitted that nothing serves to establish that the sentence imposed by her Honour was inconsistent with the range of sentences imposed historically for that offence. 79Sixthly, he accepted that there is authority for the proposition that sentences for offences committed before the introduction of a statutory ratio between a head sentence and a non-parole period should generally seek to replicate the practice of the non-parole period then being about 50 per cent of the head sentence. However, he sought to demonstrate by reference to authority that that is not an ironclad rule, and that this Court has demonstrated a degree of flexibility with regard to the question. 80Seventhly and finally, he submitted that, even taking into account the sentencing patterns of the 1970s and 1980s, both a sentencing judge and this Court must impose a sentence today that reflects the overall criminality of an offender, along with a non-parole period that reflects the minimum period of incarceration required to be served. 81In short, while accepting the correctness of some of the submissions of counsel for the applicant, his ultimate submission was that this Court would not interfere with the sentences imposed.

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Determination 82At the outset, I wish to emphasise that the following is a discussion of the imposition of appropriate sentences for sexual offences committed against children in the vicinity of three decades ago. My judgment says nothing about appropriate sentences for such offences committed today, or in the more recent past. 83Generally, I accept the propositions of counsel for the applicant. I consider that the following principles are established. 84It is true that, for over a decade, it has been clear that a sentencing judge dealing with very old offences must take into account the sentencing patterns that existed at the time of the offences: see R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; (2002) 130 A Crim R 481. 85If such a pattern is unable to be discerned, the judge should commence the sentencing process in the usual way; that is, by reference to the maximum penalty, and the place in the range of objective gravity occupied by the offence: see Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 at [66] - [71] per Howie J (with whom Fitzgerald JA agreed). 86Even if a sentencing judge does take an established sentencing pattern into account, a failure adequately to reflect the principle and the relevant sentencing pattern may cause the sentence to be manifestly excessive, or otherwise erroneous: see RWB v R [2008] NSWCCA 93; (2008) 184 A Crim R 453 at [24] - [26]. 87If sentencing for offences committed at a time when the statutory ratio did not exist, sentencing judges should sentence in accordance with that fact: see AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32 at [36] - [37] and Rosenstrauss v R [2012] NSWCCA 25 at [16]. 88Having said that, a court sentencing today with regard to old offences with regard to which a different sentencing pattern can be discerned must nevertheless bear in mind that, since 1974, it has been established that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice: Power v The Queen (1974) 131 CLR 623, referred to in AJB v R and many subsequent cases dealing with the principle under discussion. 89Finally, in appeals to this Court, reduction has not been automatic, even if it is determined that the sentencing judge failed to advert to the principle: see, for example, Mottram v R [2009] NSWCCA 210 and RLS v R [2012] NSWCCA 236. 90Applying those principles to this case, I consider that a sentencing pattern with regard to sexual offences committed against children in the late 1970s and early 1980s can be established. That is founded upon five factors. The first is the statistics that were before her Honour and this Court relating to disposition of offences in 1976 and 1978. The second is summaries of cases. Some were provided by the parties to her Honour. Others are contained in other decisions of this Court dealing with this question. The third is the general increase in sentences that has occurred across the board in New South Wales over the past quarter century. The fourth is the upward movement in maximum penalties with regard to the crimes of the applicant between the period under consideration and today. The fifth is judicial memory. I shall deal with each of those factors in turn.

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Statistics from the 1970s 91I consider that the statistical material provided to her Honour demonstrates that the offence of indecent assault, including against children, was dealt with more leniently many years ago than it is now. The document entitled "New South Wales Statistics of Higher Criminal Courts 1976" and published by the Australian Bureau of Statistics, NSW Office, shows that 77 offenders were dealt with that year for indecently assaulting a female. (These statistics do not differentiate between offences committed against adults and children.) Of those, only 24 were imprisoned. Of the 26 offenders dealt with for indecently assaulting a male or committing an act of indecency with a male, only 10 were imprisoned. 92It will be recalled that, before 1981, indecent assault encompassed many sexual acts that fall within the definition of sexual intercourse today. It will also be recalled that the statistics to which I refer are reflective of dispositions in the higher courts, and not in the Courts of Petty Sessions. 93A document with an identical title and from the same source but pertaining to 1978 shows that, of 85 offenders convicted in the higher courts of indecently assaulting a female, only 36 were imprisoned. With regard to the 27 offenders convicted of indecently assaulting a male or committing an act of indecency with a male, only 12 were imprisoned. 94With regard to both years, an examination of the length of sentences imposed upon those who were imprisoned shows that they were short compared to those imposed for equivalent offences today. For example, in 1976, of the 24 offenders imprisoned for indecently assaulting a female, 16 received a non-parole period of less than one year. In 1978, of the 36 offenders imprisoned for that offence, 13 received a non-parole period of less than 1 year, and 27 received a non-parole period of less than 2 years. 95In short the statistics provide support for the proposition that dispositions and sentences for the offence of indecent assault were more lenient in the late 1970s than they are today. 96I turn to consider the same statistics with regard to the offence of rape. It will be recalled that, until 1981, it carried a maximum penalty of imprisonment for life, and was restricted to offences founded upon penile vaginal sexual intercourse. 97The statistics from 1976 and 1978 demonstrate that lengthy head sentences were imposed for that offence. 98In 1976, of the 69 offenders convicted of rape, 68 were imprisoned. Of those 68, 35 received a head sentence of imprisonment of between 5 and 10 years, and 25 received a head sentence of imprisonment for 10 years or more. 99In 1978, all 62 offenders convicted of rape were imprisoned. Thirty-two received a head sentence of between 5 and 10 years, and 25 received a head sentence of imprisonment for 10 years or more. 100Those statistics do not support the proposition that head sentences for rape in the late 1970s were shorter then head sentences for an analogous offence committed today. 101However, the picture is slightly different with regard to non-parole periods imposed for the offence of rape in the latter half of the 1970s. 102In 1976, it is true that 19 offenders received a non-parole period of imprisonment for 5 years or more. On the other hand, 30 offenders received a non-parole period of less than 3 years. 103In 1978, of the 62 persons convicted and imprisoned, 10 received a non-parole of imprisonment for 5 years or more. On the other hand, 19 received a non-parole period of less than 3 years. 104I consider that those statistics provide some support for the proposition that the range of non-parole periods imposed in the late 1970s for the offence of rape was more lenient than the range of non-parole periods imposed for an analogous offence today. 105In short, the statistics from 1976 and 1978 provide some support for the proposition that punishments for serious indecent assaults have become more severe. The statistics do not support that proposition with regard to head sentences for the offence of rape, when compared to its modern analogues. The statistics provide a small amount of support for the proposition that non-parole periods have become more severe with regard to offences that, prior to 1981, would have been prosecuted as rape.

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Decisions of this Court 106Secondly, tables and summaries of cases support the proposition that sentences for sexual offences against children have increased. A table prepared by the research section of the Public Defenders Chambers was placed before her Honour, and this Court. It relates to appeals between 1983 and 1991 for offences against s 61D of the Crimes Act 1900; that is, offences of sexual intercourse without consent with a person under the age of 16 years. There is no need to annex a copy of that table to my judgement, as I understand that it is readily available on the Internet. 107That table shows two things. The first is that sentences, both as to head sentence and non-parole period, moved upward to some degree during that period. The second is that, at the beginning of the period, sentences, and especially non-parole periods, were lenient by the standards of today. 108Separately, in considering the question of the establishment of sentencing patterns for historical sexual offences against children, decisions of this Court have provided reviews of sentencing for such offences in the past. 109In Featherstone v R [2008] NSWCCA 71; (2008) 183 A Crim R 540, Bell JA (as her Honour then was) at [33] - [44] provided details of a number of decisions of this Court between 1990 and 1998 with regard to the sexual assault of children. I am of the view that, considered as a whole, those summaries show that sentences for such offences have moved upwards. 110To take but one example from that review, it is instructive to consider the case of R v Eagles (Court of Criminal Appeal, 16 December 1993, unreported). In Featherstone v R, Bell JA summarised R v Eagles as follows: "[T]he applicant applied for leave to appeal against the severity of sentences imposed on him for 18 assaults committed upon five young boys. A number of the offences occurred in circumstances in which the victim had come into contact with the applicant through his participation in the scouting movement. In one instance the applicant had been baby-sitting the victim whilst his mother, a near neighbour, worked nightshift. The offences included counts of homosexual intercourse with a male under 18 years under to s 78K, an offence punishable by a maximum term of penal servitude for 10 years. These offences involved anal intercourse with boys aged 10 years and 11 years. The offender defended the first of the charges involving victim A, a 10 year-old child. Following his conviction he pleaded guilty to offences involving the other four victims and asked that a further number of offences be taken into account on a schedule. The overall sentence imposed was ten years consisting of a minimum term of penal servitude of seven years and an additional term of three years. The sentence was described by Hunt CJ at CL (with whom Allen and Newman JJ agreed) as being "perhaps at or near the top of the range" but nonetheless within discretion." 111It is inconceivable that such a sentence, for a multiplicity of serious offences against a series of victims, could be described as "perhaps at or near the top of the range" today. Indeed, I consider that such a sentence would run a serious risk of being characterised as manifestly inadequate. 112Furthermore, it should be borne in mind that that was a decision of this Court nine years after the commission of the last offence of the applicant. 113In PWB v R [2011] NSWCCA 84, RS Hulme J provided a summary in table form of sentences of this Court imposed between 1990 and 1999. The table relates to sentences for offences of indecent assault and indecent assault against a person under the age of 10 years, created by ss 61E and 61M(2) respectively. Again, I shall not reproduce that table in this judgment, as it is readily available. 114I will not engage in a detailed analysis of its contents. It is true that it reveals that some substantial sentences were imposed during that time. Nevertheless, I consider that the general flavour of the contents of the table is of sentences that were less substantial than they would be if they were being considered or imposed by this Court in 2013. And it will be recalled that the table covers a period that begins 6 years after the last of the offences of the applicant. 115In short, decisions of this Court support the proposition that sentences for offences against children have increased over the past decades.

[29]

Maximum penalties for these offences 120The fourth factor is the increase in maximum penalties for the offences committed by the applicant between their commission in the latter part of the 1970s and the early part of the 1980s and today. I bear in mind the point made by Mason P in dissent in R v MJR that this is a slightly different question from that considered in that case and under discussion by me. Nevertheless, I consider that, in order to determine whether sentences may have increased for identical or similar criminal conduct over that period, it is a useful exercise to examine changes in maximum penalties. 121There follows a table that compares the offences of which the applicant was convicted with their analogues if the offences were committed today. Two modern analogues have been provided for the offence of rape, in light of the fact that that offence had no aggravated version founded on the age of the victim, no doubt due to the maximum penalty for the offence. OLD OFFENCE OFFENCE CREATING PROVISION / MAX PENALTY CURRENT ANALOGOUS OFFENCE CURRENT ANALOGOUS OFFENCE CREATING PROVISION /MAX PENALTY SNPP Indecent assault female under age of 16 years s 76 / 6yr Aggravated Indecent Assault s 61M(2) / 10yr 8yr Commit act of indecency towards female under age of 16 years s 76A / 2yr Commit act of indecency towards person under age of 16 years s 61N(1) / 2yr N/A Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr Sexual intercourse w/o consent in circs of agg s 61J(2)(d) / 20yr 10yr Ravish and carnally know person w/o consent s 63 / life Sexual intercourse w/o consent? s 61I / 14yr 7yr Sexual intercourse w/o consent in circs of agg? s 61J(2)(d) / 20yr 10yr Indecent assault person under 16 years s 61E(1) / 6yr Aggravated Indecent Assault s 61M(2) / 10yr 8yr Incite person under 16 years to commit act of indecency s 61E(2) / 2yr Incite person under 16 to act of indecency s 61N(1) / 2yr N/A

[33]

The sentences under appeal 133The question therefore is whether the sentences imposed by her Honour fail to reflect sufficiently the sentencing practice for sexual offences committed against children between 1977 and 1984. In considering that question, I bear in mind the proposition that, even when giving effect to that principle, sentences imposed now must adequately reflect the criminality of any offender, whenever the offences were committed. 134I consider that the question must be answered in the negative with regard to the offences against KB. It will be recalled that the offences spanned a period from 1977 until 1984. Of the 12 offences, six were indecent assaults that carried a maximum penalty of imprisonment for 6 years. Six were offences of sexual intercourse without consent with a person under 16 years, which carried a maximum penalty of imprisonment for 10 years. Of the latter group of offences, count 13 was founded upon penile vaginal intercourse. 135The current total sentence for the offences against KB is a head sentence of imprisonment for 8 years with a non-parole period of imprisonment for 4 years. I am not satisfied that such a sentence is manifestly excessive, bearing in mind the sentencing patterns of the time. 136The question must also be answered in the negative with regard to the sentences imposed for the offences against LM. Of the nine offences, five were indecent assaults that carried a maximum penalty of imprisonment for 6 years; two were offences of inciting an act of indecency, which carried a maximum penalty of imprisonment to 2 years; and two were offences of sexual intercourse without consent with a person under the age of 16 years, which carried a maximum penalty of imprisonment for 10 years. The latter two offences were constituted by fellatio and cunnilingus. The offending spanned the years 1980 to 1984. 137The current total head sentence with regard to the offences committed against LM is imprisonment for 6 years with a total non-parole period of imprisonment for 3 years. I do not consider that such a sentence is manifestly excessive by the standards of the early 1980s. 138As for the offences against JM, all of them were committed within 1977. The offender was convicted of two indecent assaults, each of which carried a maximum penalty of imprisonment to 6 years; an act of indecency, which carried a maximum penalty of imprisonment 2 years; and an offence of rape which, as I have said, carried a maximum penalty of imprisonment for life. 139The total sentence pertaining to the offences committed against JM is a head sentence of imprisonment for 12 years with a non-parole period of 6 years. 140In light of my failure to be satisfied that sentences for rape against children have increased, I am not satisfied that the current total sentence for the offences against JM is manifestly excessive. 141However, that is not the end of the matter. It is also necessary to turn to the contention contained in ground one, and to do so in the context of considering the historical sentencing pattern. 142Had her Honour been sentencing in 2011 for recent offences, it would have been open to her Honour to structure the sentences as her Honour did. Consideration of the sentencing structure shows that all of the offences with regard to each victim were concurrent with each other. That carried with it a degree of leniency. It is true that, as I have said, the non-parole periods imposed for the offences against JM are wholly cumulative upon the non-parole periods imposed for the offences against LM, which are in turn wholly cumulative upon the non-parole periods imposed for the offences against KB. But in light of the fact that there were three separate victims, against whom a number of discrete offences had been committed over an extended period of time, that approach to structuring the sentences would have been open to the discretion of her Honour if the offences were relatively recent ones. 143However, the overarching structure resulting from the approach of her Honour to questions of totality, concurrence, and cumulation needs to be considered in light of the sentencing standards of the late 1970s to early 1980s. The fact is that the approach to questions of cumulation and concurrence was more lax before the handing down of the decision in Pearce v The Queen in 1998. Indeed, sentencing structures in those days often bore a similarity to those that result nowadays from the modern practice of aggregate sentencing, pursuant to s 53A of the Crimes (Sentencing Procedure) Act. 144Considering the maximum penalties applicable at the time of the commission of all of the offences, taking into account all of the objective and subjective features, and bearing in mind the sentencing pattern that existed at the relevant time, I am affirmatively satisfied that the total head sentence of imprisonment for 19 years with a total non-parole period of imprisonment for 13 years is manifestly excessive. In particular, I am satisfied that such a total sentence does not adequately reflect the sentencing pattern in existence at the time of the offences. 145Furthermore, I consider that, to reflect sentencing practice in the 1970s and early 1980s, the total non-parole period of the overarching sentence structure should be closer to 50 per cent of the total head sentence than it is currently. To permit the current structure to remain, which features individual non-parole periods that are 50 per cent of their individual head sentences, but (because of accumulation) features a total non-parole period that is 68 per cent of the total head sentence, would not properly reflect the sentencing pattern under discussion. 146In short, I would uphold ground eleven, along with subsidiary grounds one and nine. Although the submissions regarding grounds six and seven have played a role in my upholding of grounds one and nine, I would not uphold grounds six and seven as separate grounds. For completeness, I indicate that the submissions in support of ground eight did not cause me to uphold ground eleven.

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